dissenting.
The majority holds that ORS 30.155 through 30.175 is consistent with Article I, § 10, Oregon Constitution.
1 cannot agree.
Constitutional commentators of all persuasions grant that written constitutions having such sections are intended to place the rights of the individual beyond invasion by temporary parliamentary majorities. 2 Cooley, Constitutional Limitations (8th ed, 1927) 733-738; Griffin v. Mixon, 38 Miss 424; Dorman v. The State, 34 Ala 216; Hotchkiss v. Porter, 30 Conn 414; Park v. Free Press Co., 72 Mich 560, 40 NW 731, 1 LRA 599.
The supremacy of the constitution, as law, and not merely as good advice, has been forcefully underscored in our own cases:
“* * * The right of personal security which has been transmitted to us from Magna Charta, and incorporated into the fundamental law of this state, guarantees to every member of society the preservation of his good name from detraction, and for any infringement of this right the law provides an adequate remedy * * * [citing Oregon Constitution, Art I, § 10].” Thomas v. Bowen, 29 Or 258, 264, 45 P 768.
«# * # [Article I, § 10] was intended to preserve the common-law right of action for injury to person or property, and while the legislature may change the remedy or form of procedure, attach conditions precedent to its exercise, and perhaps abolish old and substitute new remedies * * * [citing cases], it can not deny a remedy entirely * * *» Mattson v. Astoria, 39 Or 577, 580, 65 P 1066.
*421“* * * [E]ver since the cases of Mattson v. Astoria [supra] * * * and Batdorff v. Oregon City, 53 Or. 402 (100 Pac. 937, 188 Ann. Cas. 287, 8 N.C.C.A, 142, note), it has been the settled law of this state that the common-law remedy for negligently inflicted injuries could not be taken away without providing some other efficient remedy in its place * * West v. Jaloff, 113 Or 184, 195, 232 P 642, 36 ALR 1391.
As Judge Deady inquired in Eastman v. County of Clackamas, 32 F 24 (D Or, 1887), quoted by this court in Theiler v. Tillamook County, 75 Or 214, 146 P 828, and in Stewart v. Houk et al, 127 Or 589, 271 P 998, 272 P 893, 61 ALR 1236:
“* * * Can the legislature, in some spasm of novel opinion, take away every man’s remedy for slander, assault and battery, or recovery of a debt? and, if it cannot do so in such cases, why can it in this?” 32 F 24, supra at 32.
The Oregon retraction statute abolishes general damages except in cases of proven malice or failure to retract after request. The statute leaves the defamed no remedy other than retraction for a negligent destruction of reputation.
The challenged legislative scheme requires the plaintiff to give notice within 20 days of knowledge of his grievance. Thereafter, the option is with the defendant either to retract or be sued. The plaintiff has a “remedy in due course of law” in the sense that the law gives the plaintiff a day in court, but only if the defendant refuses to retract.
Prior to the enactment of the challenged statute, the decisions of this court recognized the general rule that, where a publication is libelous per se, general damages will be presumed as a consequence of publication. Grubb v. Johnson et al., 205 Or 624, 289 P2d *4221067; Marr et al. v. Putnam et al., 196 Or 1, 246 P2d 509; Peck v. Coos Bay Times Pub. Co. et al., 122 Or 408, 259 P 307; Barnett v. Phelps, 97 Or 242, 191 P 502, 11 ALR 663; 33 Am Jur, Libel and Slander 222, § 243 and 263, § 282; 53 CJS 362, Libel and Slander, § 239. Special damages, where recoverable, depend upon pleadings and proof. DeLashmitt v. Journal Pub. Co., 166 Or 650, 114 P2d 1018, 135 ALR 1175. And see McCormick, Damages (1935) 421-425.
There is no question of the authority of the legislature to experiment with common-law remedies. Noonan v. City of Portland, 161 Or 213, 88 P2d 808; Perozzi v. Ganiere, 149 Or 330, 40 P2d 1009; Mattson v. Astoria, supra. In the Perozzi case, we quoted from the opinion of the United States Supreme Court in Silver v. Silver, 280 US 117, 122, 50 S Ct 57, 74 L Ed 221, 65 ALR 939:
“* * * [T]he Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object # *
I would not depart from this rule. It is only a truism to add that in changing remedies the legislature must do so in such a way as to leave intact the substantial rights guaranteed by the constitution.
Remedy for injury to reputation, protected by Article I, § 10, must be a real and substantial remedy, not merely a colorable one, Mattson v. Astoria, supra, West v. Jaloff, supra, so that the rights guaranteed by the constitution are not merely false promises. A substantial remedy is one in which the law, as best it can, either restores the status quo or compensates the injured party for the loss. In some situations there áre equitáble remedies. In others damages are *423the pecuniary consequences which the law imposes for the breach of a duty or the violation of a right. Deane v. Willamette Bridge Co., 22 Or 167, 172, 29 P 440, 15 LRA 614. Damages may include mental, as well as physical, suffering. Fehely v. Senders, 170 Or 457, 135 P2d 283, 145 ALR 1092.
Seasonable minds might well disagree on the efficiency or desirability of a retraction in comparison with money damages. See Note, 69 Harv L Rev 877, 940. I agree that for some defamed persons, sincerely interested in vindication, a retraction might be an even better remedy than some trifling verdict. It may be assumed equally that for other defamed persons a retraction would do little good, possibly would compound the harm, and only rarely would reach the same public reached by the original defamation. See Morris, Inadvertent Newspaper Libel and Retraction, 32 Ill L Rev 36. However, such considerations are beside the mark unless the remedy afforded by the challenged statute is a remedy at law as demanded by the constitution.
The meaning of due course of law was explained by Daniel Webster in his celebrated argument in Dartmouth College v. Woodward, 17 US (4 Wheaton) 518, 581, 4 L Ed 629:
“* * * By the law of the land, is most clearly intended, the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. * * * If this were [not] so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees and forfeitures, in all possible forms, would be the law of the land * *
*424The principles found in the Dartmouth College case are relied upon in Hanson v. Krehbiel, 68 Kan 670, 75 P 1041, 64 LRA 790. And see the discussion in 2 Cooley, Constitutional Limitations, supra, 733-741, and Griffin v. Mixon, 38 Miss 424, supra.
The retraction statute affords the plaintiff no individual hearing or trial to determine the adequacy of a remedy in any case. "Whether the retraction has restored a reputation or further beclouded it remains a mystery. The “remedy” rather operates automatically to close the doors of the court. The legislature has arbitrarily declared that a decision to retract, rendered by the tort-feasor, shall be the exclusive remedy. The retraction is not “given” by the statute; it is merely converted from a defense in mitigation to a defense in bar.
It is settled that the legislature may not declare a certain price per acre to be “just compensation” for a massive taking of land in divers ownership under eminent domain. To do so would deny the individual owner a trial to determine just compensation for the loss of his specific property. E.g., Hood River L. Co. v. Wasco County, 35 Or 498, 57 P 1017; Branson v. Gee, 25 Or 462, 36 P 527, 24 LRA 355; Bragg v. Weaver, 251 US 57, 40 S Ct 62, 64 L Ed 135; Backus v. Fort Street Union Depot Co., 169 US 557, 18 S Ct 445, 42 L Ed 853. See 2 Cooley, Constitutional Limitations, supra, 743, 758, 1207; 1 Davis, Administrative Law 420, §7.04.
Similarly, the legislature can not declare that retraction shall be the exclusive remedy for the loss of the constitutionally protected interest in one’s reputation. Due course of law requires an individual hearing to determine whether’retraction has in fact restored the plaintiff’s reputation or merely aggravated the *425wrong. The statute is a legislative judgment that the plaintiff has been made whole. But the constitution is speaking of personal rights and not of fungible goods. The ancient rule that there must be a day in court has not been abrogated by the fact that the law does not guarantee that any given judgment can be collected on execution. Hanson v. Krehbiel, 68 Kan 670, supra.
As will be seen, the majority is justified in relying upon only one case which has passed upon the constitutionality of a similar statute. Werner v. Southern Cal. etc. Newspapers, 35 Cal2d 121, 216 P2d 825, 13 ALR2d 252, appeal dismissed 340 US 910, 71 S Ct 290, 95 L Ed 657. Before discussing that decision, it may be instructive to consult the authorities elsewhere.
In Moore v. Stevenson, 27 Conn 14, the statute provided “[t]hat in every action for an alleged libel, the defendant may give proof of intention; and unless the plaintiff shall prove malice in fact, he shall recover nothing but his actual damage proved and specially alleged in the declaration.” Connecticut Public Laws 1855, ch LXXVII. The court construed “actual damage” to mean special damages, without recovery for general loss of reputation. It then held, in order to save the constitutionality of the statute, that “malice” would have to include negligence as well as any wrongful state of mind. To the same effect is Hotchkiss v. Porter, 30 Conn 414, supra. Our statute does not admit of such a construction in order to save it.
Like the court in Hotchkiss v. Porter, the Michigan Supreme Court in Park v. Free Press Co., 72 Mich 560, supra, regarded a substantial legal remedy for defamation as one of the fundamentals of civil order. The statute in that ease abolished general and puni*426tive damages in actions against newspapers except in cases of actual malice, charges- of crime, or request and refusal to retract. The court’s conclusion has often been quoted:
“There is no room for holding in a constitutional system that private reputation is any more subject to be removed by statute from full legal protection than life, liberty, or property. It is one of those rights, necessary to human society that underlie the whole social scheme of civilization * * *.
it 4Í5 íí S ^
“It is not competent for the Legislature to give one class of citizens legal exemptions from liability for wrongs not granted to others; and it is not competent to authorize any person, natural or artificial, to do wrong to others without answering fully for the wrong * * 72 Mich at 566, 567.
The Michigan court chose to reach the constitutional issue even though it alternatively held that the particular libel was excluded from the operation of the statute by the exception for criminal charges. Accord, McGee v. Baumgartner, 121 Mich 287, 80 NW 21.
In Allen v. Pioneer-Press Co., 40 Minn 117, 41 NW 936, the statute required notice to the defendant of the statement claimed to be defamatory, and if the defendant made the statement in good faith and retracted after notice only special damages were allowed. In order to save the constitutionality of the statute, the court interpreted “good faith” to require freedom from all fault, including negligence. Again we find a court making a substantial revision of the statute in order to save it. Professor Morris, in the article cited supra, says these “mangled” retraction statutes have left the common law substantially unchanged. 32 Ill L Rev at 41.
*427In Hanson v. Krehbiel, 68 Kan 670, supra, the statute barred all but special damages in cases of retraction without actual malice. Section 18 of the Kansas Bill of Rights provided: “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.” The court held that under “due course of law” one could no more be deprived of his reputation than of his property by the self-executing mandate of the legislature.
“* * # We could not excuse ourselves for holding that reputation is less valuable that [sic] property, or that by the quoted provision of the bill of rights it is less protected from spoliation.
“It is not an easy matter to deduce, either from reason or the authorities, a satisfactory definition of law of the land’ or ‘due course of law’. However, from either standpoint, we feel safe in saying that these terms do not mean any act that the legislature may have passed, if such act does not give to one an opportunity to be heard before being deprived of property, liberty, or reputation, or, having been deprived of either, does not afford a like opportunity to show the extent of his injury and. gives no adequate remedy to recover therefor
*34* 44- ^
ÍÍ# * # # #
“The retraction required by the act in question may or may not be full reparation for the injury suffered. It might rather aggravate the injury already inflicted than mollify it. It is sufficient to say, however, that these are all questions for the courts, upon proper notice to all parties, and may not be determined arbitrarily by an act of the legislature * * 68 Kans, supra, 674-675.
In Osborn v. Leach, 135 NC 628, 47 SE 811, 66 LRA 684, the statute provided that, absent bad faith, unrea*428sonableness, or failure to retract after notice, only “actual damages” could be recovered against a newspaper. Again, in order to preserve the constitutionality of the statute, the court held “actual damages” to include both general and special damages. The court approved Hanson v. Krehbiel, supra, and Park v. Free Press, supra, and concluded that the North Carolina statute would have been unconstitutional if construed to make retraction the exclusive remedy for loss of reputation. Accord, Pentuff v. Park, 194 NC 146, 138 SE 616, 53 ALR 626.
In Post Pub. Co. v. Butler, 137 F 723 (6th Cir, 1905), the statute provided:
“ £If it shall appear at the trial, that the publication complained of was made in good faith, through mistake of fact, but with reasonable ground for believing that the statements therein contained were true and that the publisher upon demand and within a reasonable time thereafter, published a full and complete retraction in as public a manner as that in which said original publication was made, the presumption of malice attaching to or growing out of the publication of said libelous matter shall be thereby rebutted; provided that nothing contained in this act shall prevent the person libelled from alleging and proving actual malice on the part of the publisher and any special damage resulting to him therefrom.’ ” Rev Stat Ohio, §5094 (as amended in 1900), as quoted in 137 F at 725.
The Constitution of Ohio provided:
“ £A11 courts shall be open, and every person, for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law; and justice administered without denial or delay.’ ” Constitution of Ohio, Art 1, § 16, as quoted in 137 F at 725.
*429The Sixth Circuit held that a statute barring recovery for loss of reputation upon unilateral retraction would be unconstitutional, and then construed the statute to bar such recovery only in case of an actual request for retraction. The court thought a request for a retraction would be a waiver of the constitutional right to a trial.
“We can see no way of sustaining the constitutionality of this law except by placing upon it the construction contended for by the plaintiff. Not only is a retraction required to put it into operation, but the retraction must be made at the demand of the person libeled. By such demand the injured person waives the remedy he had under the law as it stood, accepts the retraction in lieu of general damages, and consents that he be restricted, in addition to the reparation thus afforded, to a recovery of special damages where he can show actual malice. Under this interpretation he is not deprived of any constitutional right because he consents to the application of the new law to his case. If he does not consent, he still has the remedy under the old law * * 137 F at 727.
In Neafie v. Hoboken Printing & Pub. Co., 75 NJL 564, 68 A 146, the court stated:
“If it be argued that the act of 1898 must be construed in the light of the common-law terminology in actions of libel, and that by ‘actual damage proved and specially alleged in the declaration’ it was intended by the legislature to exclude (in the absence of proof of express malice or the failure to retract the libel upon request) all allowance of compensation for the general injury to plaintiff’s reputation, it is sufficient, we think, to say that to adopt such a construction would necessarily render the act unconstitutional. The right of a person to be secure in his reputation against unwarranted attacks such as slanders and libels is a part of the right of enjoying life and pursuing *430and obtaining safety and happiness -which is guaranteed by our fundamental law. New Jersey Constitution, art. 1, pl. 1. And the same instrument, in conferring upon every person the right to freely speak, write and publish his sentiments on all subjects, imposes at the same time a responsibility for the abuse of that right. In short, the people of this state, who ordained the constitution, have not empowered the legislative body to authorize a newspaper publisher or any other citizen to unjustifiably injure his neighbor’s reputation without making compensation for that injury. Q-ood motives, or the absence of specific malice, are important considerations in mitigation of punitive damages, but they are no answer to a claim for compensatory damages * * 75 NJL at 567, 568.
Byers v. Meridian Ptg. Co., 84 Ohio St 408, 95 NE 917, 38 LRA (NS) 913, held unconstitutional a statute apparently barring all but special damages after retraction as denying a remedy by due course of law for injury to reputation.
In Comer v. Age Herald Publishing Co., 151 Ala 613, 44 So 673, 13 LRA (NS) 525, the statute provided that in case of retraction, where there was no proven malice, only “actual damages” could be recovered. In order to save the constitutionality of the statute the court construed “actual damages” to include both general and special damages.
In Ellis v. Brockton Publishing Co., 198 Mass 538, 84 NE 1018, the statute provided:
“ ‘Unless the plaintiff proves actual malice or the want of good faith, or a failure either to retract or offer to retract as aforesaid, he shall recover damages only for the actual injury sustained, but in no action of libel shall exemplary or punitive damages be allowed.’ ” R. L. c. 173, § 92, as quoted in 198 Mass at 543 (1908).
*431The court in order to avoid constitutional difficulties construed “actual” .to include both general and special damages.
In Meyerle v. Pioneer Pub. Co., 45 ND 568, 178 NW 792, the statute barred all but special damages, absent bad faith, unreasonableness, or failure to retract after notice. The court held that retraction in cases of good faith would avoid punitive damages and mitigate general damages, but would not avoid general damages for such injuries as remained after the retraction. This construction was again made to save the constitutionality of the statute.
In Ross v. Gore, 48 So2d 412 (Florida, 1950), the statute barred all but “actual damages” in cases of retraction where there had been no actual malice. The Florida court, again in order to save the constitutionality of the statute, construed “actual damages” to mean general damages.
This summary of the cases I have found shows that prior to Werner v. Southern Cal. etc. Newspapers, 35 Cal2d 121, supra, none of the many courts called upon to review retraction statutes had held constitutional a statute which made retraction the exclusive remedy for libel. In two states similar statutes do not appear to have been tested in the appellate courts. Baldwin’s Kentucky Rev Stat, §§411.050 (1955), 411.061 (Cum Supp 1961); Neb Rev Stat 1943 (1959 Cum Supp), § 25-840.01.
In 1950, the California Supreme Court upheld the California statute. California has no constitutional section like our Article I, § 10. The majority opinion, by Traynor, J., is, in many ways, a persuasive argument for parliamentary absolutism. Werner v. Southern Cal. etc. Newspapers, 35 Cal2d 121, supra. It is not likely, therefore, that the California majority *432would have reached a different result under our constitutional provision. The California majority, like ours, sees the question as one of policy that must be addressed to the legislature rather than to the court. The California majority held that a proper exercise of judicial restraint prevented the court from making a qualitative judgment upon the adequacy of the remedy, and that legislative elimination of a remedy at law invaded no constitutional right. In so holding, however, the California court gave considerable attention to policy arguments of its own. The California majority thought, for example, that the Assembly was moved to eliminate the “evil” of jury trials. Werner v. Southern Cal. etc. Newspapers, supra; and see Chafee, Possible New Remedies for Errors m the Press, 60 Harv L Rev 1. Such considerations are, of course, matters for legislative resolution within constitutional limits. But expressed constitutional limits ishould not be ignored. Strong dissenting voices vainly urged California to follow the weight of authority elsewhere. The dissenting justices there suggested that the majority was exercising judicial abdication rather than restraint.
This court has recently reaffirmed the rule that unless we can say that the Legislative Assembly acted contrary to an express constitutional limitation its action is valid. The question of legislative wisdom is not subject to judicial review. State ex rel Overhulse v. Appling, 226 Or 575, 361 P2d 86; Warren v. Marion County et al., 222 Or 307, 327, 353 P2d 257, and cases cited therein. I would not depart from these decisions. However, where the constitution has guaranteed its authors and their successors a remedy, if the legislature thereafter eliminates the only remedy known to the law and substitutes something else, it is a judi*433cial function to resolve a properly presented question whether the substituted remedy is, in fact, a remedy.
The majority says the statute is as proper an exercise of legislative discretion as are the widely accepted automobile-guest statutes, city-sidewalk statutes, workmen’s compensation laws, and the so-called heart-balm statutes referred to in the Werner case. The analogy between ORS 30.165 (the retraction statute) and legislation outlawing breaeh-of-promise-tomarry actions is weakened by the fact that the plaintiff in a libel case seeks to vindicate a constitutional right, and not merely a common-law right. Further, such a plaintiff does not ordinarily have the attributes of a volunteer frequently possessed by plaintiffs laboring under other statutes which substitute, or in certain cases eliminate, common-law remedies. With reference to the automqbile-guest statute, this court observed that there was no established rule of common law covering such cases when Article I, § 10, became part of the basic charter. Perozzi v. Ganiere, supra, 149 Or at 347. In the so-called heart-balm statutes, no constitutional rights were involved. I recognize that, in each of the instances mentioned, a proper respect for the prerogatives of the legislative branch of government has compelled the courts to uphold a substitution of a substantial alternative remedy for a common-law cause of action, or the outright elimination of a remedy when to do so violated no constitutional guarantee. Perozzi v. Ganiere, 149 Or 330, supra (guest statute); Noonan v. City of Portland, 161 Or 213, supra (immunity of cities); Evanhoff v. S1AC, 78 Or 503, 154 P 106, Atkinson v. Fairview Dairy Farms, 190 Or 1, 222 P2d 732, and Bigby v. Pelican Bay Lbr. Co., 173 Or 682, 147 P2d 199 (workmen’s *434compensation); Magierowski v. Buckley, 39 NJ Super 534, 121 A2d 749 (New Jersey heart-balm law).
But here, the fatal defect is that the legislature .has left the victim of an injured reputation no substantial remedy at all. Retraction, even if it reaches the same audience reached by the defamatory matter, does not compensate for the loss for which no proof can be produced, but which the law has traditionally protected by the jury verdict. Legislative objectives, however worthy, do not provide a constitutional basis for sacrificing the plaintiff’s right to a hearing. It is no answer to say that juries can not be trusted, nor that rascals might profit from the jury system, nor that any significant number of persons who see one television program will probably see another with its remedial retraction, so there is no harm in denying one a day in court. Due process of law is not so easily ignored.
On the fundamental question here presented, I have found no case which satisfactorily answers the objection expressed in 1888 by the Michigan court when it was considering a statute far less drastic than our own. There the court, after addressing itself to the unreality of a remedy purporting to give only special damages to women whose chastity may have been impugned or to defamed members of ethical professions for the destruction of their practices, considered the shopkeeper. We quote:
“* '* * The cases must be very rare in which a libel will destroy business profits in such a way that the loss can be directly traced to the mischief * * *. The statute does not reach cases where a libel has operated to. cut off chances of office or employment in the future, or broken up or prevented relationships not capable of an exact money standard, or produced that intangible but fatal *435influence which suspicion, helped by ill will, spreads beyond recall or reach by apology or retraction. Exploded lies are continually reproduced without the antidote, and no one can measure with any accurate standard the precise amount of evil done or probable.” Park v. Free Press Co., supra, 72 Mich at 565, 566.
Similar expressions are found in the cases I have cited, and in the comments of the reviewers. See Clarence Morris, Inadvertent Newspaper Libel and Retraction, 32 Ill L Rev 36, supra; William Frye, Note, 36 OLR 70. Professor Morris, in his primer on torts, observes that while the Werner decision in California may be a turning point in the law of libel, it is in the wrong direction. Morris, Torts (1953) 297. I am sorry to see Oregon turn the same way.
I would reverse the trial court.
Warner and Sloan, JJ., concur in this dissent.